In re the Marriage of Joseph Cody Stockwell, Appellee, and Jennifer Lynn Dees, Appellant.
and County of Denver District Court No. 12DR1367 Honorable
Catherine A. Lemon, Judge
Announced June 27, 2019 Joseph Cody Stockwell, Pro Se
Jennifer Lynn Dees, Pro Se
1 In this proceeding concerning the allocation of parental
responsibilities (APR) for L.D-S., Jennifer Lynn Dees, the
child's mother, appeals the district court's order
denying her motion to vacate a 2013 order giving majority
parenting time to Joseph Cody Stockwell, the child's
legal but not biological father. Dees contends that the court
erred because it issued the APR order without first inquiring
into the child's possible Indian heritage as required by
the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.
§§ 1901 to 1963 (2018). Dees is right. In agreeing
with her, we clarify that (1) a legal father under Colorado
law is not necessarily a "parent" for purposes of
ICWA and (2) an APR to a legal father who does not qualify as
a "parent" under ICWA is a "child custody
proceeding" under ICWA.
2 Because the APR to Stockwell here constituted a child
custody proceeding and the court did not comply with ICWA, we
reverse the order denying Dees's motion and remand for
Factual and Procedural History
3 L.D-S. was born during the marriage between Dees and
Stockwell. That marriage has since been dissolved. Although
Stockwell is not L.D-S.'s biological father, he was
declared his legal father under the paternity presumption in
section 19-4-105(1)(a), C.R.S. 2018. On October 2013, the
district court entered an APR order that named Stockwell the
primary residential parent for L.D-S. and limited Dees's
parenting time to weekends. Over the next few years, the
court expanded Dees's parenting time to include holidays,
school breaks, and two weeks of summer vacation.
4 In 2015, Dees asked the court to set aside the October 2013
APR order. She alleged that she had obtained a DNA test
result from L.D-S.'s biological father that would rebut
Stockwell's paternity presumption. A magistrate denied
her motion, and the district court adopted the
5 In 2017, Dees filed a pro se motion titled "Motion for
25 U.S.C. 1914 'ICWA' Violations," arguing that
federal law required L.D-S. to be returned to her care
(hereinafter, ICWA motion). She attached to the ICWA motion
various orders (including the October 2013 APR order) and a
letter asking the district court to invalidate all parenting
orders, return L.D-S. to her custody, and comply with ICWA.
She asserted in her letter that L.D-S. was "Choctaw and
Wailaki on my side only" and that the APR to Stockwell
was a "foster care placement." The court denied the
motion as untimely.
6 ICWA is intended to protect and preserve Indian tribes and
their resources, and to protect Indian children who are
members of or are eligible for membership in an Indian tribe.
25 U.S.C. § 1901(2), (3) (2018); People in Interest
of M.V., 2018 COA 163, ¶ 10. ICWA recognizes that
Indian tribes have a separate interest in Indian children
that is equivalent to, but distinct from, parental interests.
M.V., ¶ 10. Thus, in a proceeding in which ICWA
may apply, tribes must have a meaningful opportunity to
participate in determining whether a child who is a subject
of the proceeding is an Indian child and to be heard on the
issue of the applicability of ICWA. B.H. v. People in
Interest of X.H., 138 P.3d 299, 303 (Colo. 2006).
7 ICWA applies when an Indian child is the subject of a
"child custody proceeding," which includes any
action that could culminate in "foster care
placement." 25 U.S.C. § 1903(1) (2018); 25 C.F.R.
§ 23.2 (2018); People in Interest of K.G., 2017
COA 153, ¶ 14. An "Indian child" is any
unmarried person who is under age eighteen and is either (1)
a member of an Indian tribe or (2) eligible for membership in
an Indian tribe and is the biological child of a member of an
Indian tribe. 25 U.S.C. § 1903(4). Under ICWA, a tribe
is entitled to intervene in child custody proceedings
involving its children, and a tribal court is the preferred
jurisdiction for such proceedings. K.G., ¶ 6.
8 At the start of every emergency, voluntary, or involuntary
child custody proceeding, the district court must ask each
participant whether he or she knows or has reason to know
that the child is an Indian child. 25 C.F.R. § 23.107(a)
(2018); K.G., ...